Robinson v. McNeil Consumer Healthcare

671 F.Supp.2d 975

Karen ROBINSON, Plaintiff, v. McNEIL CONSUMER HEALTHCARE, a Division of McNeil-PPC, Inc., and Johnson & Johnson, Defendants.

No. 07 C 5603.

United States District Court, N.D. Illinois, Eastern Division.

November 16, 2009.

COPYRIGHT MATERIAL OMITTED

Charles W. Branham, Christopher J. Panatier, Clay B. Carroll, Dana C. Simon, David C. Greenstone, Jay E. Stuemke, Jeffrey B. Simon, Lisa White Shirley, Simon

Eddins & Greenstone LLP, Dallas, TX, James E. Ocasek, John Devitt Cooney, Cooney & Conway, Chicago, IL, for Plaintiff.

John Dames, David B. Sudzus, Drinker, Biddle & Reath LLP, Russell Jason Chibe, Drinker Biddle Gardner Carton, Chicago, IL, Benjamin J. Holl, Kenneth P. Conour, Thomas W. Pulliam, Jr., Vernon Ivan Zvoleff, Drinker Biddle & Reath LLP, San Francisco, CA, Christy D. Jones, Butler Snow, Jackson, MS, Kari L. Sutherland, Butler Snow O'Mara Stevens & Cannada, PLLC, Memphis, TN, Matthew M. Shors, O'Melveny & Myers LLP, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

JAMES F. HOLDERMAN, Chief Judge:

After a six-day jury trial in this pharmaceutical product liability case, the jury reached a verdict, finding for plaintiff Karen Robinson on her negligence claim against defendant McNeil Consumer Healthcare ("McNeil") but not on her identical claim against defendant Johnson & Johnson (collectively "Defendants"). The jury also found that Robinson was contributorily negligent and that her negligence proximately caused her injuries. Applying Virginia law, the court has determined that her contributory negligence completely barred her recovery against McNeil.

During trial, the parties filed timely motions for judgment as a matter of law under Federal Rule of Civil Procedure 50(a). After entry of the judgment on the jury's verdict, Robinson filed her "Renewed Motion for Judgment as a Matter of Law, Motion to Amend the Judgment, and Motion for New Trial" [424], which is currently before the court. Defendants also filed their "Conditional Renewal of Rule 50(a) Motion for Judgment as Matter of Law Pursuant to Rule 50(b) After Trial" [422] in the event the court sets aside the jury's verdict entered in their favor. For the reasons explained below, Robinson's motion is denied, and, as a result, Defendants' motion is denied as moot.

BACKGROUND

In the early hours of September 12, 2005, Karen Robinson awoke with a headache and decided to take her son's Children's Motrin to treat the pain. (Trial Tr. 540:18-541:1; 541:8-16; 541:25-542:21.) Although she had read the product's warnings when she first purchased the product for her son about four or five months earlier, she did not review those warnings before taking the product on this occasion. (Id. at 596:10-14.) She took the dosage amount for a six to eight year old child— two teaspoons—and went back to bed. (Id. at 541:25-542:21.) When she awoke on September 12, 2005, she noticed some discoloration on her chest which continued to darken as the day progressed. (Id. at 549:17-21; 550:20-551:4.) During the middle of the second night she developed a fever and again decided to take two teaspoons of Children's Motrin. (Id. at 551:19-552:14.)

The following day, September 13, 2005, Karen Robinson saw a doctor, Dr. Glenn Anderson, who prescribed a Medrol Pack to treat the apparent allergic reaction. (Id. at 553:14-17; 553:22-25; 554:14-18.) Although Robinson informed her doctor that she had taken Children's Motrin, she did not discuss with him whether she should continue taking the medication. (Id. at 554:1-11.) Later that evening, the rash began forming blisters, and during the middle of the night, she noticed that her fever had increased. (Id. at 555:13-25; 556:16-21.) Robinson took the third and final, two teaspoon dose of Children's Motrin around 2 or 3 o'clock in the morning on September 14, 2005. (Id. at 557:8-21; 558:1-4.) Because both her fever and rash were worsening despite having taken Medrol Pack, Robinson returned to her doctor in the morning on September 14, 2005. (Id. at 558:5-13.) She was hospitalized at the Fairfax, Virginia hospital and eventually transferred to the burn unit at Johns Hopkins in Maryland. (Id. at 560:5-8; 560:17-19.)

Robinson was diagnosed with toxic epidermal necrolysis ("TEN"), a severe form of Stevens-Johnson syndrome ("SJS") that attacks an individual's mucosal linings and results in severe internal and external burning.¹ (Id. at 77:13-78:14.) Robinson not only experienced significant skin sloughing but also blistering and burning throughout her body, including her mouth, eyes, throat, and internal systems. (See generally id. at 561:24-570:12 (testimony of Karen Robinson discussing extent of her injuries).) Due to the severity of her injuries, she was hospitalized for nearly a month. (Id. at 560:14-16.) Robinson ultimately lost the vision in her left eye and has limited vision in her right eye, which requires constant medical treatment. (Id. at 568:18-569:14.)

Karen and Jonathon Robinson originally filed this lawsuit in Illinois state court against McNeil, the manufacturer of Children's Motrin, and Johnson & Johnson, McNeil's parent corporation, alleging that Karen Robinson suffered physical injuries resulting from her ingestion of Children's Motrin in September 2005. Defendants removed this lawsuit to federal court based on diversity jurisdiction in October 2007.

Before trial, the court determined that Virginia law applied to the Robinson's claims, thereby barring Jonathon Robinson's sole claim for loss of consortium and Karen Robinson's strict liability claims. (Dkt. No. 306.) The court additionally found that any punitive damages would be capped at $350,000 as required by Virginia law. (Id.) Because Robinson expressly waived her implied warranty claims in the parties' Final Proposed Pretrial Order without respect to whether Illinois or Virginia law governed (see Dkt. No. 245), the court also precluded Robinson from pursuing that theory of liability at trial (see Dkt. No. 400).

The case proceeded to trial on Robinson's two negligence theories against McNeil and Johnson & Johnson: (1) the Children's Motrin was defectively designed, and (2) the Children's Motrin's warnings were inadequate. Defendants denied that they were negligent and further asserted that notwithstanding any alleged negligence, Karen Robinson's own contributory negligence barred her recovery.

After the six-day trial, the jury returned a verdict finding that defendant McNeil, but not defendant Johnson & Johnson, was negligent and that its negligence proximately caused Karen Robinson's injuries. The jury also found that Robinson was contributorily negligent. Under Virginia law, Robinson's contributory negligence is a complete bar to recovery. Litchford v. Hancock, 232 Va. 496, 352 S.E.2d 335, 337 (1987) ("[A]ny negligence of a plaintiff which is a proximate cause of the accident will bar a recovery.").

During the trial, at the conclusion of the evidence, the parties filed timely motions for judgment as a matter of law under Federal Rule of Civil Procedure 50(a). Currently before the court is Robinson's "Renewed Motion for Judgment as a Matter of Law, Motion to Amend the Judgment, and Motion for New Trial" [424], and Defendants' "Conditional Renewal of Rule 50(a) Motion for Judgment as Matter of Law Pursuant to Rule 50(b) After Trial" [422]. For the reasons explained below, Robinson's motion is denied, and, as a result, Defendants' motion is denied as moot.

ANALYSIS

1. Judgment as a Matter of Law

As a federal court exercising diversity jurisdiction under 28 U.S.C. § 1332, this court applies federal law in determining whether a party deserves judgment as a matter of law. Groom v. Days Inn of Am., Inc., 62 F.3d 204, 207 (7th Cir.1995); Walter v. Bruhn, 40 Fed.Appx. 244, 246 (7th Cir.2002) ("Although courts in this circuit formerly applied state standards to the determination of mid-trial and post-trial motions regarding the sufficiency of the evidence, we have since adopted the federal reasonable-person standard across the board: pre-trial, mid-trial, post-trial, and on appeal, for evaluating both the merits and the quantum of relief, in diversity as well as federal question cases.") (citations & internal quotations omitted).

Under Federal Rule of Civil Procedure 50, judgment as a matter of law is appropriate when "a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 149, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting Fed. R.Civ.P. 50(a)). In performing this analysis, the court "must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Waite v. Bd. of Trs., 408 F.3d 339, 343 (7th Cir.2005). The court "will overturn a jury verdict . . . only if [it] conclude[s] that no rational jury could have found for [the nonmovant]." Id. (citation omitted). Based on the deference afforded to the jury's verdict, the Rule 50 standard "is obviously a difficult standard to meet." Id.; see also Sheehan v. Donlen Corp., 173 F.3d 1039, 1043 (7th Cir.1999) ("Attacking a jury verdict is a hard row to hoe.").

In this case, Robinson challenges the jury's finding that she was contributorily negligent. According to Robinson, the jury could not have reasonably found that (1) she was negligent, and (2) her negligence proximately caused her injuries, as is required under Virginia law. See Karim v. Grover, 235 Va. 550, 369 S.E.2d 185, 186 (1988) (discussing contributory negligence elements).

A. Jury's Finding that Robinson Acted Negligently

Robinson advances three primary arguments in support of her contention that the record lacks a legally sufficient evidentiary basis to support the jury's conclusion that she acted negligently: (1) defense counsel's statement that McNeil was not "blaming" Robinson qualifies as a...